Kinsela v Caldwell [1975] HCA 10

High Court of Australia McTiernan, Stephen and Mason JJ. Kinsela v Caldwell [1975] HCA 10

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

March 14 McTiernan, Stephen and Mason JJ.

This is an appeal against an order of Mahoney J. made in a suit wherein the plaintiff, the present appellant, sought a declaration against the defendants — some of the present respondents — that the plaintiff is entitled to the transfer of certain shares, which the defendants to the suit held as trustees under a deed of trust made by the appellant on 20th October 1964. The shares were shares in Charles Kinsela Pty. Ltd., some of which the settlor then owned and others of which he was entitled to in an estate in remainder by virtue of his interest in the estate of his father, Charles Henry William Kinsela, deceased.

This appeal was originally argued before a Bench on which the late Sir Douglas Menzies presided; he died before judgment was delivered and the appeal has now been re-argued.

At the original hearing of the appeal the wife and children of the appellant, who had been served with the notice of appeal and who were represented, were, without objection, added as respondents in order that they should be bound by any order that the Court might make.

At that hearing an application by the appellant to add to his notice of appeal was granted in part, but the Court refused to permit the following addition, viz.:

1. That his Honour should have held that the transfer by the appellant to the respondents of the shares referred to in the said deed was made by the appellant as security only and that upon repayment by the appellant of the sum secured thereby the appellant was entitled to have the said shares transferred back to him notwithstanding any provisions of the said deed to the contrary.